MACA Nos. 3075 of 2008; 164 of 2009; and 1929 of 2014, High Court of Kerala at Ernakulam

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** **WEDNESDAY, THE 12TH DAY OF MARCH 2019 / 21ST PHALGUNA, 1940** ## **MACA. No.3075 of 2008** **AGAINST THE AWARD IN OP[MV] NO.1280/2001 OF THE MOTOR ACCIDENT CLAIMS TRIBUNAL, NEYYATTINKARA DATED 13-05-2008** ## **APPELLANTS/CLAIMANTS:** - **1 RAKESH, AGED 24 YEARS S/O. LATE RAMACHANDRAN NAIR, RESIDING AT RAGESH BHAVAN, PULLAYIL, MELARIYODU DESOM, MARANALLOOR VILLAGE, NEYYATTINKARA TALUK** - **2 SANTHA KUMARI, AGED 47 YEARS W/O. LATE RAMACHANDRAN NAIR, RESIDING AT RAGESH BHAVAN, PULLAYIL, MELARIYODU DESOM, MARANALLOOR VILLAGE, NEYYATTINKARA TALUK.** - **3 PANKAJAKSHI PILLAI GOMATHY AMMA, AGED 70 YEARS RESIDING AT RAGESH BHAVAN, PULLAYIL, MELARIYODU DESOM, MARANALLOOR VILLAGE, NEYYATTINKARA TALUK.** - **4 LEKSHMIKUTTY PILLAI THANKAMMA PILLAI, AGED 71 YEARS** - **RESIDING AT RAGESH BHAVAN, PULLAYIL, MELARIYODU DESOM, MARANALLOOR VILLAGE, NEYYATTINKARA TALUK.** **BY ADV. SRI.D.KISHORE** ## **RESPONDENTS/RESPONDENTS:** **1 SIVANANDHAN** **S/O. VELAYUDHAN, RESIDING AT KAIRALI VEEDU, WARD NO.4, NEAR NARUVAMMODU, PALLICHAL TALUK, NEYYATTINKARA TALUK.** MACA. No.3075 of 2008 etc. 2 - **2 BALACHANDRAN, S/O. VELAYUDHAN, RESIDING AT ANANTHASAYANAM COTTAGE, WARD NO.IV NEAR NARUVAMMODU JUNCTION, PALLICHAL VILLAGE, NEYYATTINKARA TALUK.** - **3 P.MURALIDARAN NAIR, S/O. MADHAVAN PILLAI, KOTTARATHALA ROADARIKATHU VEEDU, ARUVIKKARA, MARANALLOOR VILLAGE, NEYYATTINKARA TALUK, VELIYAMCODE P.O. [DIED]** - **4 UNITED INDIA INSURANCE COMPANY LTD. REPRESENTED BY ITS DIVISIONAL MANAGER, CSI COMPOUND, PALAYAM, THIRUVANANTHAPURAM.** - **ADDL. PRABHAVATHI, W/O.LATE MURALEEDHARAN, KOTTARATHALA R5 ROADARIKATHU VEEDU, ARUVIKKARA, MARANALLOOR VILLAGE, NEYYATTINKARA P.O., VELIYAMCODE.** - **ADDL. MAHESH, S/O.LATE MURALEEDHARAN, R6 KOTTARATHALA ROADARIKATHU VEEDU, ARUVIKKARA, MARANALLOOR VILLAGE, NEYYATTINKARA P.O., VELIYAMCODE.** - **ADDL. MUKESH, S/O.LATE MURALEEDHARAN, KOTTARATHALA R7 ROADARIKATHU VEEDU, ARUVIKKARA, MARANALLOOR VILLAGE, NEYYATTINKARA P.O., VELIYAMCODE.** - **ADDL. PRIYA, D/O.LATE MURALEEDHARAN, KOTTARATHALA R8 ROADARIKATHU VEEDU, ARUVIKKARA, MARANALLOOR VILLAGE, NEYYATTINKARA P.O., VELIYAMCODE.** **(ADDITIONAL RESPONDENTS 5 TO 8 ARE IMPLEADED AS THE LEGAL HEIRS OF THE DECEASED 3RD RESPONDENT AS PER ORDER DATED 16/11/2018 IN IA NO.1/2018)** **BY ADVS. SRI.G.S.REGHUNATH SRI.THOMAS MATHEW NELLIMOOTTIL** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 12.03.2019, ALONG WITH MACA NOS.164 OF 2009 & 1929 OF 2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** MACA. No.3075 of 2008 etc. 3 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** **WEDNESDAY, THE 12TH DAY OF MARCH 2019 / 21ST PHALGUNA, 1940** **MACA. No.1929 of 2014** **AGAINST THE AWARD IN OP[MV] NO.1280/2001 OF THE MOTOR ACCIDENT CLAIMS TRIBUNAL, NEYYATTINKARA DATED 13-05-2008** ## **APPELLANT/1ST RESPONDENT:** **SIVANANDHAN S/O. VELAYUDHAN, RESIDING AT KAIRALI VEEDU, WARD NO.4, NEAR NARUVAMMODU, NEYYATTINKARA TALUK, THIRUVANANTHAPURAM DISTRICT.** **BY ADVS. SRI.R.NIKHIL SRI.BINU PAUL (NETTOOR) SRI.P.ABDUL RAZAK** ## **RESPONDENTS/APPELLANTS & RESPONDENTS 2 TO 4:** **1 RAKESH S/O. LATE RAMACHANDRAN NAIR, RESIDING AT RAGESH BHAVAN, PULLAYIL, MELARIYODU DESOM, MARANALLOOR VILLAGE, NEYYATTINKARA TALUK, THIRUVANANTHAPURAM DISTRICT. 2 SANTHA KUMARI W/O. LATE RAMACHANDRAN NAIR, RESIDING AT RAGESH BHAVAN, PULLAYIL, MELARIYODU DESOM, MARANALLOOR VILLAGE, NEYYATTINKARA TALUK, THIRUVANANTHAPURAM DISTRICT. 3 PANKAJAKSHI PILLAI GOMATHY AMMA RESIDING AT RAGESH BHAVAN, PULLAYIL, MELARIYODU DESOM, MARANALLOOR VILLAGE, NEYYATTINKARA TALUK, THIRUVANANTHAPURAM DISTRICT.** MACA. No.3075 of 2008 etc. 4 - **4 LEKSHMIKUTTY PILLAI THANKAMMA PILLAI RESIDING AT RAGESH BHAVAN, PULLAYIL, MELARIYODU DESOM, MARANALLOOR VILLAGE, NEYYATTINKARA TALUK, THIRUVANANTHAPURAM DISTRICT.** - **5 BALACHANDRAN, S/O. VELAYUDHAN, RESIDING AT ANANTHASAYANAM COTTAGE, WARD NO.IV NEAR NARUVAMMODU JUNCTION, PALLICHAL VILLAGE, NEYYATTINKARA TALUK, THIRUVANANTHAPURAM DISTRICT.** - **6 P.MURALIDARAN NAIR, S/O. MADHAVAN PILLAI, KOTTARATHALA ROADARIKATHU VEEDU, ARUVIKKARA, MARANALLOOR VILLAGE, NEYYATTINKARA TALUK, VELIYAMCODE P.O., THIRUVANANTHAPURAM DISTRICT. [DIED]** - **7 UNITED INDIA INSURANCE COMPANY LTD. REPRESENTED BY ITS DIVISIONAL MANAGER, CSI COMPOUND, PALAYAM, THIRUVANANTHAPURAM.** - **8 ADDL. R8 PRABHAVATHI, W/O.LATE MURALEEDHARAN, KOTTARATHALA ROADARIKATHU VEEDU, ARUVIKKARA, MARANALLOOR VILLAGE, NEYYATTINKARA P.O., VELIYAMCODE.** - **9 ADDL R9 MAHESH, S/O.LATE MURALEEDHARAN, KOTTARATHALA ROADARIKATHU VEEDU, ARUVIKKARA, MARANALLOOR VILLAGE, NEYYATTINKARA P.O., VELIYAMCODE.** - **10 ADDL R10 MUKESH, S/O.LATE MURALEEDHARAN, KOTTARATHALA ROADARIKATHU VEEDU, ARUVIKKARA, MARANALLOOR VILLAGE, NEYYATTINKARA P.O., VELIYAMCODE.** - **11 ADDL R11 PRIYA, D/O.LATE MURALEEDHARAN, KOTTARATHALA ROADARIKATHU VEEDU, ARUVIKKARA, MARANALLOOR VILLAGE, NEYYATTINKARA P.O., VELIYAMCODE.** **[ADDL. RESPONDENTS 8 TO 11 ARE SUO MOTU IMPLEADED AS PER ORDER DATED 16.11.2018 IN MACA NO.1929 OF 2014 AS LEGAL HEIRS OF THE DECEASED 6TH RESPONDENT]** MACA. No.3075 of 2008 etc. 5 **12 ADDL R12 KERALA STATE INSURANCE DEPARTMENT DISTRICT INSURANCE OFFICE, HOUSING BOARD BUILDING COMPLEX, SANTHINAGAR THIRUVANANTHAPURAM-695 001 REPRESENTED BY THE DISTRICT INSURANCE OFFICER** **[ADDL. 12TH RESPONDENT IS IMPLEADED AS PER ORDER DATED 15.02.2019 IN I.A. NO.1 OF 2019]** **BY ADVS. SRI.D.KISHORE SMT.R.AMLA SRI.N.S.MOHAMMED USMAN SRI.JOHN JOSEPH VETTIKKAD** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 12.03.2019, ALONG WITH MACA NOS.3075/2008 & 164 OF 2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** MACA. No.3075 of 2008 etc. 6 # **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** **WEDNESDAY, THE 12TH DAY OF MARCH 2019 / 21ST PHALGUNA, 1940** **MACA. No.164 of 2009** **AGAINST THE AWARD IN OP[MV] NO.1280/2001 OF THE MOTOR ACCIDENT CLAIMS TRIBUNAL, NEYYATTINKARA DATED 13-05-2008** ## **APPELLANT/4TH RESPONDENT:** **UNITED INDIA INSURANCE COMPANY LTD. THIRUVANANTHAPURAM,** **NOW REPRESENTED BY ITS DEPUTY MANAGER, REGIONAL OFFICE, “SHARANYA”, HOSPITAL ROAD, KOCHI-11.** ## **RESPONDENTS/PETITIONERS & RESPONDENTS 1 TO 3:** - **1 RAKESH, S/O. LATE RAMACHANDRAN NAIR, RESIDING AT RAGESH BHAVAN, PULLAYIL, MELARIYODU DESOM, MARANALLOOR VILLAGE, NEYYATTINKARA TALUK.** - **2 SANTHA KUMARI, W/O.LATE RAMACHANDRAN, DO. DO.** - **3 PANKAJAKSHI PILLAI GOMATHY AMMA, DO. DO.** - **4 LEKSHMIKUTTY PILLAI THANKAMMA PILLAI, DO. DO.** - **5 SIVANANDAN, S/O.VELAYUDHAN, RESIDING AT KAIRALI VEEDU WARD NO.4, NEAR NARUVAMMODU, NEYYATTINKARA TALUK.** - **6 BALACHANDRAN, S/O.VELAYUDHAN, RESIDING AT ANANTHASAYANAM COTTAGE, WARD NO.IV NEAR NARUVAMMODU JUNCTION, PALLICHAL VILLAGE NEYYATTINKARA TALUK.** - **7 P. MURALIDHARAN NAIR, S/O.MADHAVAN PILLAI KOTTARATHALA ROADARIKATHU VEEDU, ARUVIKKARA MARANALLOOR VILLAGE, NEYYATTINKARA TALUK VELIYAMCODE P.O. [DIED]** MACA. No.3075 of 2008 etc. 7 ## **ADDL 8 PRABHAVATHI, W/O.LATE MURALEEDHARAN, KOTTARATHALA ROADARIKATHU VEEDU, ARUVIKKARA, MARANALLOOR VILLAGE, NEYYATTINKARA P.O., VELIYAMCODE.** **ADDL. MAHESH, S/O.LATE MURALEEDHARAN, R9 KOTTARATHALA ROADARIKATHU VEEDU, ARUVIKKARA, MARANALLOOR VILLAGE, NEYYATTINKARA P.O., VELIYAMCODE. ADDL. MUKESH, S/O.LATE MURALEEDHARAN, KOTTARATHALA R10 ROADARIKATHU VEEDU, ARUVIKKARA, MARANALLOOR VILLAGE, NEYYATTINKARA P.O., VELIYAMCODE. ADDL. PRIYA, D/O.LATE MURALEEDHARAN, KOTTARATHALA R11 ROADARIKATHU VEEDU, ARUVIKKARA, MARANALLOOR VILLAGE, NEYYATTINKARA P.O., VELIYAMCODE. (ADDITIONAL RESPONDENTS 8 TO 11 ARE SUO MOTU IMPLEADED AS THE LEGAL HEIRS OF THE DECEASED 7TH RESPONDENT AS PER ORDER DATED 16/11/2018)** **BY ADVS. SRI.D.KISHORE SMT.R.AMLA SRI.N.S.MOHAMMED USMAN SRI.JOSE JOSEPH VETTIKAD** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 12.03.2019, ALONG WITH MACA NOS.3075/2008 & 1929 OF 2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **M.A.C.A. Nos.3075 of 2008, 164 of 2009 & 1929 of 2014** ## **JUDGMENT** **The three appeals are from the very same award of the Tribunal; one by the claimant's, legal heirs seeking enhancement of compensation awarded, the other by the Insurance company of one of the vehicles, claiming exoneration of 50% liability cast on them and the third one by the owner of one of the vehicles involved,against the liability cast on him personally. The parties shall be referred from their status in the award.** **2. The deceased was travelling in a scooter owned by the 3[rd] respondent, when the accident occurred. A First Information Report was registered on the incident. As seen from the First Information Statement, the accident occurred when the 2[nd] respondent/driver of a Mahindra Van opened its door, hitting the scooter, which the deceased was riding. The deceased fell down and there were injuries caused and he succumbed to his injuries** MACA. No.3075 of 2008 etc. 9 **after three days. The date of accident was on 23.08.1999 and the date of death was 26.08.1999. The 1[st] respondent is the owner of the Mahindra Van.** **M.A.C.A. No.164 of 2009** **3. First considering the appeal of the Insurance company, M.A.C.A. No.164 of 2009, it is to be noticed that the Insurance Company, who has been impleaded, is the insurer of the scooter, which was driven by the deceased. The scooter was covered by an Act only policy. In such circumstances, the insurer of the scooter does not have any liability to indemnify the death of a rider, especially going by the precedent in** _**Jiljet and Others v. Stamphen George and Others [2018 (5) KHC 206]**_ **. Hence, the insurer of the scootter has to be exonerated totally.** **M.A.C.A. No.164 of 2009 stands allowed.** **M.A.C.A. No.3075 of 2008** **4. Next taking up the appeal of the claimants for enhancement, this Court finds that** MACA. No.3075 of 2008 etc. 10 **though the appellant claimed to be a pensioner, nothing was produced to show the monthly pension drawn by him. In fact the application under Section 163A of the Motor Vehicles Act, 1988 [for brevity, 'the Act'] showed a pension of Rs.10,000/-, which later was amended and reduced to Rs.3,000/-. Obviously, this is to bring the claim within the limit of Rs.40,000/- annual income, which alone is permissible under Schedule II of the Act. As far as the income is concerned, the Tribunal reduced it to Rs.1,800/- and calculated compensation on the same and awarded the fixed amounts as seen from the schedule under the various heads. In such circumstances, this Court does not find any reason to enhance the amounts granted by the Tribunal, since the amounts awarded are in accordance with the Schedule.** **M.A.C.A. No.3075 of 2008 would stand rejected.** **M.A.C.A. No.1929 of 2014** MACA. No.3075 of 2008 etc. 11 **5. This appeal is filed by the owner of the Mahindra Van. The learned Counsel for the appellant contends that the Mahindra Van was never involved in the said accident and that if at all there was negligence found on the driver of the Mahindra Van, then the claimants ought to have impleaded the Insurance Company. The offending vehicle was also covered by a valid insurance policy. It is submitted on the strength of Section 160 of the Act that the registering authority or the officer in charge of a Police Station had a duty to furnish particulars of the vehicle involved in an accident and the claimants ought to have invoked such provision, which would have ensured that the Insurance Company is also in the party array. The appellant seeks exoneration from the liability, since the Insurance Company was never impleaded. As an alternative prayer, the respondent also seeks that he may be left remedy to seek indemnification from the Insurance Company.** MACA. No.3075 of 2008 etc. 12 **6. This Court is unable to appreciate the contentions of the appellant in this appeal for the simple reason that despite notice having been received from the Tribunal, he did not appear there. True, the claimants did not implead the insurer of the vehicle, nor did they invoke Section 160 of the Act. But that alone cannot defeat the claim of the legal representatives of a deceased, especially when the owner and driver of the vehicle was impleaded in the application. The owner was issued with notice and was served. The driver of the offending vehicle was also named as the accused in the FIR registered.** **7. The owner ought to have appeared before the Tribunal and produced the insurance policy of the vehicle, which would have necessarily resulted in the Tribunal itself allowing the indemnification and directing the Insurance Company to pay up the compensation awarded. The owner having not appeared before the Tribunal cannot raise such contention in** MACA. No.3075 of 2008 etc. 13 **the appeal, especially when there was a review filed, which was rejected and which had achieved finality. Section 160 of the Act does not cast any obligation on the claimants herein. True, there is a duty on the registering authority or the Police Officers to furnish details of the particulars of the vehicle. But that cannot disentitle the claimants from seeking compensation from the registered owner of the vehicle involved, who is impleaded in the application before the Tribunal. It is for such registered owner to submit before the Tribunal that the vehicle is insured.** **8. The owner having not appeared before the Tribunal cannot raise such contention in the appeal, especially when there was a review filed, which was rejected and which had achieved finality. The review was filed on the contention that there was a valid Insurance Policy. The review is seen to have been rejected by the Tribunal by order dated 23.04.2014. Though there is no appeal filed** MACA. No.3075 of 2008 etc. 14 **from that order, it is to be noticed that there was a policy produced before the Tribunal which was valid at the time of occurrence of the accident. The vehicle was covered by a policy issued by the Kerala State Insurance Department which was valid between 22.12.1998 to 21.12.1999. This Court hence directed the appellant herein to implead the Kerala State Insurance Department. The learned Government Pleader has taken notice for the Department and a memo is filed on 01.03.2019 by the learned Government Pleader producing the policy of the appellant. The vehicle had a valid policy as admitted by the Insurance Department at the time of accident. In such circumstance, this Court is of the opinion that the appeal can be allowed on the following terms.** **9. If the appellant in MACA 1929/2014 satisfies the entire amounts awarded along with interest payable within a period of three months from the date of receipt of a certified copy of** MACA. No.3075 of 2008 etc. 15 **this judgment, the award shall be set aside only to the extend of the liability mulcted on the appellant-registered owner of the offending vehicle and the liability shall be regulated as hereunder:** _**“The appellant herein, who is the registered owner of the vehicle, shall satisfy the entire award amount along with interest at the rate of 7.5% from the date of application, i.e., 29.10.2001, to the date of payment, within a period of three months from today and make deposit of the amounts before the MACT. If the amounts are so paid, then the Kerala State Insurance Department, who is the additional 12[th] respondent in the M.A.C.A., shall pay the award amount with interest at the rate of 7.5% from 29.10.2001, the date of application to 13.05.2008, the date of award to the insured, the appellant herein, on the appellant making such an application before the Department. The interest from 13.05.2008 to the date of payment would be the liability of the appellant-registered owner itself, since the delay was occasioned for his non appearance before the Tribunal.**_ **10. The learned Government Pleader** MACA. No.3075 of 2008 etc. 16 **representing the Kerala State Insurance Department has submitted that the State Insurance Department may be permitted to raise the issue of negligence before the Tribunal. However, I find that there is no question of negligence being raised before the Tribunal since the application was filed under Section 163A of the Act, which is a no fault liability. It is made clear that if the amounts as directed herein are not paid by the appellant to the legal heirs of the deceased within the three months as stipulated herein, then the liability shall be on the registered owner itself and the claimants would be entitled to seek recovery on execution from the Tribunal.** **11. In such circumstances, M.A.C.A.** **No.1929 of 2014 would stand allowed as above.** **12. In the context of the orders passed in the above appeals, the liability to pay up the compensation is on the insurer of the registered owner of the Mahindra Van; if the orders in his** MACA. No.3075 of 2008 etc. 17 **appeal are complied with and otherwise on the registered owner itself. The insurer of the motor bike in which the deceased was travelling, is exonerated from the liability. The entire liability under Section 163A of the Act awarded by the Tribunal would be satisfied by the registered owner of the offending vehicle as directed herein above and indemnification sought from the insurer, to the extent permitted herein above. No order as to costs.** **Sd/-** ## **K. VINOD CHANDRAN JUDGE** **sp/13/03/19** **//True Copy//** **P.A. To Judge** MACA. No.3075 of 2008 etc. 18 ## **M.A.C.A. NO.1929 OF 2014** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:-** |**ANNEXURE 1**|**-**|**A TRUE COPY OF THE ORDER DATED 23.04.2014 IN**| |---|---|---| |||**I.A. NO.2790/10 IN OP[MV] NO.1280/2001 ON THE**| |||**FILES OF THE MOTOR ACCIDENTS CLAIMS TRIBUNAL,**| |||**NEYYATTINKARA.**| |**ANNEXURE A1**|**-**|**CERTIFIED COPY OF I.A. NO.2790/2010 FILED**| |||**BEFORE THE MOTOR ACCIDENTS TRIBUNAL,**| |||**NEYYATTINKARA DATED 15.03.2010.**| |**ANNEXURE-A2**|**-**|**THE TRUE COPY OF THE INSURANCE POLICY NO.DT2/**| |||**CV/5858/98 FOR THE PERIOD FROM 22.12.1998**| |||**TO 21.12.1999 DATED 22.12.1998.**|